Under the Serious and Organised Crime (Unexplained Wealth) Act 2009 (SA) the Crown Solicitor, upon request of the Director of Public Prosecutions, may apply to the District Court for a declaration that a person or an incorporated body has unexplained wealth. These orders are called unexplained wealth orders [s 9].
Whilst the Criminal Assets Confiscation Act 2005 (SA) allows for the proceeds or instruments of crime to be forfeited to the State, this can only occur where a person has been convicted of a serious offence or is suspected on reasonable grounds of having committed a serious offence, and the relevant property that can be seized is either the proceeds of the offence or property used in the commission of the offence. Unexplained wealth orders provide the authorities with increased powers to seize property connected to illegal activity but without having to establish a direct link between the property concerned and a specific criminal offence.
What is wealth?
Under the Act wealth includes all property a person owns or controls, or has previously owned or controlled, and this extends to property acquired before the commencement of the legislation [s 3].
Property covered by an unexplained wealth order
If an unexplained wealth order is granted the property the subject of the order will be those components of a person’s property which have not been lawfully acquired. This property then forms the basis of a debt from the person to the State with the effect that it is surrendered to the government [ see s 9 generally].
It is also possible for the authorities to apply for investigative (for example monitoring orders [s 14]) or restraining orders preventing the disposal of property [see s 20] before or after an application for an unexplained wealth order has been made.
Appeals against an unexplained wealth order or a restraining order can be made to the Supreme Court [ss 10, 26].
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